December 6, 2017, President Trump announced the decision to move the U.S. embassy to Israel to Jerusalem, formally declaring Jerusalem to be Israel’s capital. This move, again, made a big splash. Historically, both Israelis and Palestinians have claimed Jerusalem to be their capital. The sovereignty to East Jerusalem, part of the West Bank, is especially under dispute between the two peoples.
Coincidentally, 2017 also witnessed the 50th anniversary of Israel’s military occupation of Gaza and the West Bank, home to approximately six million Palestinians. 50 years has passed but the question remains: Is the Israeli occupation justified by the international law? And if not, which law does it violate?
The origins of modern Israel and Palestine: two peoples, one home
The root of the modern Israeli-Palestinian conflict lay in the Balfour Declaration that the British government issued in 1926 to state its support for the establishment of a “national home for the Jewish people” in Palestine, part of the Ottoman Empire at that time and home to an Arab majority.
In A History of the Modern Middle East, William Cleveland summarized the Declaration as an attempt in which “a small territory that had been inhabited by an Arab majority for some 1,200 years was promised by a third party (Great Britain) as a national home to another people (the international Jewish community), the majority of whom lived in Eastern Europe.”
The UN proposed in 1947 to establish two states in the same area, one Jewish and one Arab, and an internationalized Jerusalem to settle the dispute. Yet neither side caved in. Israel was founded in 1948 amid an ever growing Zionist enthusiasm. Up to 750,000 Palestinians fled or were expelled from the land newly recognized as Israeli territory, an incident remembered as the 1948 Nakbra (catastrophe). On the other hand, Arab countries helped direct the establishment of the Palestinian Liberation Organization in 1964 as the sole legitimate representative of the Palestinian people in order to confront Israel’s rise.
Six-Day War and the occupation
A war erupted between Israel and its neighboring states Egypt, Jordan and Syria. The war, also known as the Six-Day War, or the 1967 Arab-Israeli War, concluded as Israel captured the Gaza Strip and Sinai Peninsula from Egypt’s dominance, the West Bank from Jordan and the Golan Heights from Syria. It is worth noticing that none of the three countries claimed sovereignty over the lands they controlled by the time the war broke out.
Israel later returned Sinai Peninsula to Egypt, while continued to occupy the Gaza Strip, the West Bank and the Golan Heights until the present day. Golan Heights are now internationally recognized Syrian territories, whereas the sovereignty over Gaza and the West Bank is still under dispute between Israel and Palestine.
In the past 50 years, Israelis has expanded their settlement by exploiting natural resources, constructing infrastructure and launching agricultural programs in Gaza and the West Bank. On the other hand, Palestinian Arabs have been suffering from the oppressive rule. Israel military has forcefully displaced Palestinians, restricted their access to life necessities, and physically abused them.
Former Israeli Prime Minister Levi Eshkol once described the occupation as a situation where Israelis “want the dowry but don’t like the bride.”
International law debate: the Fourth Geneva Convention
It is widely believed the the Israeli settlement has violated the Fourth Geneva Convention, part of International Humanitarian Law. The UN Security Council also reaffirmed in a resolution in December 2016 that “Israeli’s settlements in Palestinian territories it occupied since 1967…constituted a flagrant violation of international law.”
International Humanitarian Law, or IHL, is a set of rules that regulates war conducts with the aim to minimize the unnecessary sufferings during a war, in essence a law of war. The first part of IHL is the 1949 Geneva Conventions, a series of international treaties signed amid the growing humanitarian and pacifist enthusiasm in the aftermath of World War II.
The Geneva Convention relative to the Protection of Civilians Persons in Time of War, commonly known as the Fourth Geneva Convention, proposes rules to protect civilians in a war zone. Article 49 of the Fourth Geneva Convention prohibits individual or mass forcible transfers of their own population into the occupied territories, as well as deportations of citizens who used to live on the territories.
Nevertheless, the Israeli government has denied such an accusation on the ground that the Palestinian territories were not previously under the legitimate sovereignty of any state and and were controlled in a war of self-defense. Therefore, Israel argues that the Fourth Geneva Convention does not apply to their occupation of the West Bank and Gaza.
A twisted Interpretation of law: after the Oslo Accords
The 1993 Oslo Accords marked a turning point of the legal discussion over the Israeli occupation. The Accords were a set of agreements between the Israeli government and the Palestine Liberation Organization, with the longterm goal to peacefully resolve all the disputes between Israel and Palestine and to grant Palestinians with the right to self-determination. The Accords helped create a Palestinian Authority in the West Bank and Gaza to take over from the Israeli government, foreseeing a permanent self-rule. However, the Accords did not recognize a Palestinian state.
However, later evidence suggests Israel’s compromise was merely strategic—it used the Accords as a justification of a continuous presence in the West Bank and Gaza without paying any cost. Through a nominal transfer of power to the Palestinian Authority, Israel has effectively recognized the West Bank and Gaza as foreign territories. Meanwhile, the absence of a legitimate Palestinian state makes Palestinians remain stateless, therefore not eligible to defend themselves with military forces.
As a result, Israel used this awkward situation to reinterpret the international law for its own benefit. Article 6 of the Fourth Geneva Convention states that the Occupying Power would only be bound to the terms “to the extent that such Power exercises the functions of government in such territory.” Namely, Israel is no longer bound by the Fourth Geneva Convention after the transfer of power. Israel thus managed to continue to confront Palestinians, a foreign people who is effectively defenseless.
Israeli Occupation and the U.S. Law
This October, the United States and Israel declared their withdrawal from the United Nations Scientific and Cultural Organization, or UNESCO, to protest against its “anti-Israel bias.” The so-called “anti-Israel bias” refers to UNESCO’s documented recognition and support of Palestine. Although many regarded this act as one of the many reckless moves of President Trump, it was not entirely groundless.
Two pieces of legislation—one signed by President George H.W. Bush in 1990 and the other by President Bill Clinton in 1994—designated the prohibition of the U.S. funding to any U.N. agency that recognizes a Palestinian state.
For instance, the 1990 Public Law 101-246 provides that “no funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.”
Likewise, the 1994 Public Law 103-236 provides that “the United States shall not make any voluntary or assessed contribution to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.”
Although many criticized Trump’s decision to move the U.S. embassy to Jerusalem, one can hardly argue that the United States has always been firmly on Israel’s side during its conflict with Palestine.
Reflection and prospects
The Israeli-Palestinian conflict reflects how international laws and domestic laws pertinent to International issues may serve as a powerful tool in foreign affairs.
International laws are often made case by case, making them flexible and inflexible at the same time. On the one hand, states could reinterpret the laws to their own ends. On the other hand, legislations usually do not effectively adapt to new situations. By this token, the Israeli-Palestinian conflict is not likely to conclude as Palestine remains a partially recognized state.
On the other hand, the United States has written its support of Israel into legislation. In this case, previous U.S. legislations actually paved the way for future U.S. presidents to continue inherit this legacy.
Author Bio: Xinchen Li is a senior from Shanghai, China. She majors in political science and economics.